Citation Nr: 0800848
Decision Date: 01/09/08 Archive Date: 01/22/08
DOCKET NO. 05-22 641 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wichita, Kansas
THE ISSUES
1. Entitlement to an initial compensable evaluation for
peripheral neuropathy of the right upper extremity.
2. Entitlement to an initial compensable evaluation for
peripheral neuropathy of the left upper extremity.
3. Entitlement to a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Amy R. Grasman, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1968 to May 1975.
This appeal comes before the Board of Veterans' Appeals
(Board) from a July 2004 RO decision granting service
connection for peripheral neuropathy of the right and left
upper extremity and assigning a 0 percent evaluation. This
appeal also comes before that Board from a June 2005 rating
decision denying entitlement to TDIU.
The Board received additional medical evidence from the
veteran in July 2006 and December 2006 consisting of VA
medical records. The new evidence was accompanied by a
waiver of the veteran's right to initial consideration of the
new evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c)
(2007). Accordingly, the Board will consider the new
evidence in the first instance in conjunction with the issue
on appeal.
Additional evidence was also submitted by the veteran in July
2006 consisting of a Social Security Administration award
letter. The veteran did not provide a waiver of RO
consideration of this evidence. See 38 C.F.R. § 20.1304(c).
The additional evidence does not provide information
regarding the veteran's peripheral neuropathy and does not
establish that the veteran meets the criteria for TDIU under
38 C.F.R. § 4.16 (2007). As such, the Board finds that the
evidence is not pertinent and referral to the RO for initial
review is not required. 38 C.F.R. § 20.1304(c).
FINDINGS OF FACT
1. The veteran has been notified of the evidence necessary to
substantiate his claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. The objective medical evidence shows normal strength,
tone, reflexes, sensation and range of motion in the right
upper extremity.
3. The objective medical evidence shows normal strength,
tone, reflexes, sensation and range of motion in the left
upper extremity.
4. The veteran is currently service connected for diabetes
mellitus, rated as 40 percent disabling; tinnitus, rated as
10 percent disabling; peripheral neuropathy of the right
lower extremity associated with diabetes mellitus, rated 10
percent disabling; peripheral neuropathy of the left lower
extremity associated with diabetes mellitus, rated 10 percent
disabling; bilateral hearing loss, rated as 0 percent
disabling; peripheral neuropathy of the right upper extremity
associated with diabetes mellitus, rated 0 percent disabling;
and peripheral neuropathy of the left upper extremity
associated with diabetes mellitus, rated 0 percent disabling.
5. The veteran has a combined disability rating of 60
percent.
6. The veteran does not meet the percentage criteria for a
total disability rating based on individual unemployability
due to service-connected disabilities and the evidence of
record does not show that the veteran is otherwise
unemployable by reason of his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for a compensable evaluation for peripheral
neuropathy of the right upper extremity have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.20,
4.40, 4.124, 4.124a, Diagnostic Code 8515 (2007).
2. The criteria for a compensable evaluation for peripheral
neuropathy of the left upper extremity have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.20, 4.40,
4.124, 4.124a, Diagnostic Code 8515 (2007).
3. The criteria for a TDIU rating are not met. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). This notice must be provided prior to an
initial unfavorable decision on a claim by the agency of
original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App.
112 (2004).
Here, the VCAA duty to notify was satisfied by way of letters
sent to the appellant in May 2004 and January 2005 that fully
addressed all four notice elements and was sent prior to the
initial AOJ decisions. The letters informed the appellant of
what evidence was required to substantiate the claims and of
the appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in his possession to the AOJ.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Here, the veteran is challenging the initial evaluation
assigned following the grant of service connection for
peripheral neuropathy. In Dingess, the Court of Appeals for
Veterans Claims held that in cases where service connection
has been granted and an initial disability rating and
effective date have been assigned, the typical service-
connection claim has been more than substantiated, it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled. Id. at 490-91. Thus,
because the notice that was provided before service
connection was granted was legally sufficient, VA's duty to
notify in this case has been satisfied.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained service medical
records, DD Form 214 and VA medical records. The appellant
was afforded a VA medical examination in June 2004.
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the appellant is required
to fulfill VA's duty to assist the appellant in the
development of the claim. Smith v. Gober, 14 Vet. App. 227
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
PERIPHERAL NEUROPATHY - Right and Left Upper Extremities
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities, which is based as far as practical on average
impairment in earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1. Separate diagnostic codes identify the various
disabilities. When a question arises as to which of two
ratings apply under a particular diagnostic code, the higher
evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the veteran. 38 C.F.R. §
4.3. Also, when making determinations as to the appropriate
rating to be assigned, VA must take into account the
veteran's entire medical history and circumstances. 38
C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592
(1995).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But since the
veteran timely appealed the ratings initially assigned for
his peripheral neuropathy, the Board must consider
entitlement to "staged" ratings to compensate for times
since filing the claim when the disability may have been more
severe than at other times during the course of the appeal.
Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).
Evaluating the disability under several diagnostic codes, the
Board considers the level of impairment of the ability to
engage in ordinary activities, including employment, and
assesses the effect of pain on those activities. 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59 (2005); See DeLuca v. Brown, 8 Vet.
App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 and
38 C.F.R. § 4.45, however, should only be considered in
conjunction with the diagnostic codes predicated on
limitation of motion. Johnson v. Brown, 9 Vet. App. 7
(1996).
The veteran's peripheral neuropathy of the right and left
upper extremities has been rated as 0 percent disabling by
analogy under Diagnostic Code 8599-8515. Diagnostic Code
8599 indicates the condition is unlisted and is rated under a
closely related disease or injury. 38 C.F.R. § 4.27.
Diagnostic Code 8515 pertains to paralysis of the median
nerve. Under Diagnostic Code 8515, a 10 percent rating is
for application when there is mild incomplete paralysis of
the median nerve. A 30 percent rating is for application
when there is moderate incomplete paralysis. A 50 percent
rating is provided for severe incomplete paralysis. A
maximum 70 percent evaluation is warranted for complete
paralysis of the median nerve. 38 C.F.R. § 4.124a,
Diagnostic Code 8515.
The Board has reviewed all the medical evidence of record and
finds that the veteran's peripheral neuropathy of the right
and left upper extremities is appropriately evaluated.
In a July 2003 VA Compensation and Pension Examination the
cranial nerves II - XII were grossly intact, deep tendon
reflexes were intact, finger-thumb dexterity was intact,
nose-finger coordination was intact, and there was full range
of motion in all joints and no complaints of pain. There was
also no ankylosis or other deformity. The diagnosis was
essentially normal peripheral neuropathy examination.
An October 2003 neurology consult showed normal strength and
tone in both upper extremities. Sensation in the upper
extremities was preserved distally. In April 2004, an EMG
nerve conduction study showed diffuse peripheral neuropathy
without axon degeneration. In May 2004, the veteran's
bilateral hand grip was equal and normal.
In a June 2004 VA Compensation and Pension Examination, the
examiner found that the two point discrimination was intact
as well as sharp and dull sensation to the finger tips. The
hands had full range of motion with thumbs to fingers and
finger tips touching the palmar creases. The veteran's grip
strength was equal and strong.
In July 2006, the veteran reported a numbing sensation in all
his extremities for the past 5 years. The right upper nerve
conduction study revealed diffuse peripheral neuropathy. The
symptoms were not persistent. Symptoms occurred while
sleeping and after waking up and resolved within one hour.
November 2006 VA treatment notes indicate that the veteran
had ulnar compression in the upper extremities. There was no
peripheral neuropathy objectively related to diabetes
mellitus and there was a normal peripheral sensory
examination.
Based on the medical evidence and the lack of objective
findings of symptoms associated with peripheral neuropathy,
the Board concludes that a compensable evaluation is not
warranted. The veteran had normal strength, tone, reflexes,
sensation and range of motion in his upper extremities.
There was also no evidence of paralysis in the upper right or
left extremity in the medical evidence of record. As such,
the Board does not find that the veteran's peripheral
neuropathy is mildly disabling. The Board also considered
the veteran's assertions of pain, however, the objective
medical evidence does not demonstrate impairment of ordinary
activities to warrant a compensable rating.
The Board notes that other diagnostic codes could also apply
to the veteran's disability. Diagnostic Codes 8510-8716 also
apply to peripheral nerve disabilities. Under these codes a
compensable evaluation requires at least a mildly disabling
disability. See 38 C.F.R. § 4.124a, Diagnostic Code 8510-
8716 (2007). The criteria under these codes for an increased
rating are analogous to Diagnostic Code 8515. Therefore, the
veteran would also not be entitled to a compensable rating
under these codes.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of positive and negative evidence. As the
preponderance of the evidence is against the claim for a
compensable evaluation for peripheral neuropath of the right
and left upper extremities, the benefit-of-the-doubt rule
does not apply and the Board must deny the claim. See
Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).
The Board further notes that to the extent that the veteran's
service-connected disabilities affect his employment, such
has been contemplated in the assignment of the current 0
percent schedular evaluation. The evidence does not reflect
that the disability at issue caused marked interference with
employment, or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. Hence,
referral to the RO for consideration of the assignment of an
extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is
not warranted.
TDIU
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340 (2007).
If the total rating is based on a disability or combination
of disabilities for which the Schedule for Rating
Disabilities provides an evaluation of less than 100 percent,
it must be determined that the service-connected disabilities
are sufficient to produce unemployability without regard to
advancing age. 38 C.F.R. § 3.341 (2007).
If the schedular rating is less than total, a total
disability evaluation can be assigned based on individual
unemployability if the veteran is unable to secure or follow
a substantially gainful occupation as a result of service-
connected disability, provided that he has one service-
connected disability rated at 60 percent or higher; or two or
more service-connected disabilities, with one disability
rated at 40 percent or higher and the combined rating is 70
percent or higher. 38 C.F.R. § 4.16(a) (2007). (The
veteran's disabilities are not the result of a common
etiology. 38 C.F.R. § 4.16(a)(2)) Veterans unable to secure
and follow a substantially gainful occupation by reason of
service-connected disability shall be rated totally disabled.
38 C.F.R. § 4.16(b) (2007). In cases where the schedular
criteria are not met, an extraschedular rating is for
consideration. 38 C.F.R. § 3.321 (2007).
In this case, the service connected disabilities include
diabetes mellitus, rated as 40 percent disabling; tinnitus,
rated as 10 percent disabling; peripheral neuropathy of the
right lower extremity associated with diabetes mellitus,
rated 10 percent disabling; peripheral neuropathy of the left
lower extremity associated with diabetes mellitus, rated 10
percent disabling; bilateral hearing loss, rated as 0 percent
disabling; peripheral neuropathy of the right upper extremity
associated with diabetes mellitus, rated 0 percent disabling;
and peripheral neuropathy of the left upper extremity
associated with diabetes mellitus, rated 0 percent disabling.
The service connected disabilities combine to a rating of 60
percent. Thus, as the combined service connected disability
is lower than 70 percent, the criteria for a total disability
rating under the provisions of 38 C.F.R. § 4.16(a) are not
met.
Notwithstanding, it is the policy of the VA that all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of a service-connected disability shall
be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a
veteran fails to meet the rating enunciated in 38 C.F.R. §
4.16(a), as here, an extraschedular rating is for
consideration where the veteran is unemployable due to
service-connected disability. 38 C.F.R. § 4.16(b) (2007).
Therefore, the Board must evaluate whether there are
circumstances in the veteran's case, apart from any
nonservice-connected condition and advancing age, which would
justify a total rating based upon individual unemployability,
due solely to the veteran's service-connected disabilities.
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
The evidence of record, however, does not show that the
veteran is unable to secure or follow a substantially gainful
occupation due to his service-connected disabilities. The
evidence shows that the veteran retired in October 2005.
There is no evidence that the veteran is unemployable due to
service connected disabilities. There is also no evidence
showing that the veteran retired due to a service connected
disability. As there is no competent medical evidence of
record to show that the veteran is unable to secure or
maintain substantially gainful employment solely due to his
service-connected disabilities, the veteran's claim for
entitlement to a TDIU is denied.
In reaching this conclusion, the Board notes that under the
provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt
is to be resolved in the claimant's favor in cases where
there is an approximate balance of positive and negative
evidence in regard to a material issue. The preponderance of
the evidence, however, is against the veteran's claim and
that doctrine is not applicable. See Gilbert v. Derwinski,
supra.
ORDER
Entitlement to a compensable rating for peripheral
neuropathy of the right upper extremity is denied.
Entitlement to a compensable rating for peripheral
neuropathy of the left upper extremity is denied.
Entitlement to TDIU is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs